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at the ses
and fourteen previous, and
Members of the state legislature.] It is provided by statute, Durinandeir that “every member of the legislature shall be privileged from sion, arrest on civil process, during his attendance at the session of
the house to which he shall belong, except on process issued in
or breach of trust iu any office or place of public trust held while going by him."15 The like privilege is given for the space of four
teen days previous to any such session, and also while going
when such adjournment does not exceed fourteen days.16
of the house to which they belong; and to officers of either
Attornies and officers of courts of record.] As to the privilege enjoyed by attornies and officers of courts of record, its extent and duration, see chapter second, section second, of the first part of this work.18
Wife discharged on common bail.
Married women and females.] In an action against husband and wife, the husband alone is liable to be arrested ; and he will not be discharged unless he put in bail for himself and wife.19 If the wife be arrested on mesne process, she shall be discharged on common bail; and that whether she be arrested singly,2° or jointly with her husband.21 So in an action against a feme covert only, whether the plaintiff had notice of her coverture or not, the court, upon an affidavit of the fact, which it is
15 R. St. P. 1. Ch.7. T. 2. s. 6. 20 Cro. Jac. 145. 1 Barn. & Ald. Vol. 1. p. 154.
165. 16 Ib. s. 7,8.
21 1 Lev. 216. 1 Salk. 115. 6 17 Jb. s. 9, 10.
Mod. 17. Str. 1272. Term Rep. 18 Ante, Vol. 1. p.
486, 3 Wils. 124. sed vide 1 Taunt. 19 1 Salk. 115. 6 Mod. 17. 86. 254. Str. 1272. 1 Lev. 216. sed vide 1 H. Black. Rep. 235.
said must be sworn to by himself and not by another,22 will discharge her out of custody, or, if she has given a bail bond, will order it to be delivered up to be cancelled, on filing common bail.23
It is now the English practice to discharge the wife when taken in execution, as well as on mesne process; though formerly when the wife was taken in execution, she was not entitled to be discharged, unless it appeared that there was fraud and collusion between the plaintiff and her husband to keep her in prison.24
If the husband be an alien residing abroad, it has been held that the wife may be sued and arrested as a feme sole. 25
In addition to the common law privileges of married wo- Statutory
. men, it is now provided in the revised statutes, that “no female shall be imprisoned on any process in any civil action founded upon contract."26
7 Taunt. 55.
amount of the debt, she was dis23 2 H. Black. Rep. 17. 6 Term charged from custody, and the Rep. 451. 1 New Rep. 54. 1 East plaintiff was ordered to pay the Rep. 16. 17. n.
costs of the application. 3 Taunt. 1 Tidd. Pract. 220. But where 307. But if she had given the bill a woman, who had given a warrant of exchange without disclosing her of attorney, married during the coverture, she would not have been term and was afterwards taken in discharged. 7 Taunt. 55. If the execution on a judgment signed as fact of the coverture be doubtful, of that term, and therefore having or she has obtained credit by imrelation to the first day of the term, posing herself on the plaintiff as a it was held that she could not be feme sole, she must find special relieved. Triggs vs. Triggs, cited bail and plead her coverture, or 1 Tidd. Pract. 220. Where the bring a writ of error. 5 Term Rep. defendant contracted as a feme 194. 6 Term Rep. 452. 3 Bos. & sole, and when she disclosed that Pull. 220. 1 New Rep. 55. 1 Tidd. she was married, also stated that Pract. 221. she was separated from her hus- 25 2 Bos. & Pull. 233. 1 New band, and had estates settled to Rep. 81. 2 New Rep. 380. her own separate use, and actually 26 R. St. P. 3. Ch.7. T. 6. g. 9. gave a bill of exchange for the Vol. 2. p. 428.
Privileged eundo mo
Parties to a suit, witnesses, &c.] The parties to a suit, rando, et re- their attornies and witnesses, are protected from arrest in
coming to, attending upon, and returning from the courts; or, as it is usually termed, eundo, morando, et redeundo. 27
The courts have not been nice in scanning this privilege, but have given it a large and liberal construction.
Thus a plaintiff, who was attending from day to day at the sittings, in expectation of his cause being tried, was held to be privileged from arrest whilst waiting for that purpose at a coffeehouse in the vicinity of the court, before the actual day of trial.28 And where the defendant was attending his cause at the sittings, and though it was put off early in the day, stayed in the court till five in the afternoon, and then went with his attorney and witnesses to dine at a tavern, where he was arrested during dinner; the court held that such a necessary refreshment as this ought not to be looked upon as a deviation, so as to cancel the defendant's privilege redeundo.29 Nor is the party bound to go the nearest way home, if he do not abuse his privilege for the purpose of going about other business of his own.50
A foreign witness attending without a subpoena is equally privileged:31 and in such case an arrest has been held not to be valid, even for the purpose of giving jurisdiction to the court out of which the process issues. But in all other cases where a suitor or witness is arrested, he could only have been discharged, according to the former practice, on filing common bail; and was not privileged from having process served upon him in a non-bailable action. 33 But now the
37 2 Rol. Abr. 272. 1 Mod. Rep. 31 1 Wendell. Rep. 292. 3 Cow66. Barnes, 27.378. Peake's Evid. en. Rep. 392. 2 Johns. Rep. 294. 193. 1 Camp. 229.
8 Term. Rep. 536. 1 H. Black. 28 11 East, 439.
Rep. 636. 29 2 W. Black. Rep. 1113. et 32 3 Cowen. Rep. 381. 2 Johns. vide Com. Dig. Privilege A. 5 Rep. 294. 1 Wendell. Rep. 292. Bac. Abr. 617. 4 Dallas, 387. 33 1 Wendell. Rep. 292. 7 John. 30 6 Taunt. 358. 4 Dallas, 329.
arrest of a witness when privileged, is declared by statute to be absolutely void in all cases.43
This court will discharge persons privileged by reason of their attendance on this court, though arrested by process out of another court,35 and it will discharge a person privileged on account of attendance on another court, when arrested on process issuing out of this court.
The privilege has been holden to extend to all persons who Extent of hold any relation to a cause, which calls for their attendance in court, and who attend in the course of that cause, though not compelled by process.37 And it extends to persons attending before arbitrators and referees, where a cause is referred by rule of court, and for a reasonable time after the hearing ; and to bail attending to justify.99
The revised statutes contain the following provisions, recognising and enforcing the privilege of witnesses; it has been thought preferable in the first instance to notice separately the common law rights of witnesses, parties, &c.; because the statute relates to witnesses only, and does not seem to embrace all cases in which even they are privileged at common law.
It is provided, that “every person duly and in good faith In what subpoenaed as a witness to attend any court, officer, commissioner, or referee, or summoned to attend any judge, officer, or commissioner, in any case where the attendance of such witness may by law be enforced by attachment or commitment, shall be exonerated from arrest in any civil suit while
31 See post.
Rep. 636. 1 Maule. & Selw. 638. 2 Johns. Rep. 294.
3 East. Rep. 89. 8 Term Rep. 7 Johns. Rep. 538. 6 Taunt. 536. 1 Caines' Rep. 116. 3 Cowen. 356. Rep. temp. Hardw. 41. Rep. 381. 2 Wendell. Rep. 257.
* Walpole vs. Alexander, cited 39 1 Camp. 230. n. Barnes, 27. 1 Tidd. Pract. 222. 1 H. Black. 1H. Black. Rep. 636.
going to the place where he shall be required by such subpæna to attend, while remaining at such place, and while returning therefrom.”:40
“ The court or officer before whom any person shall have been, in good faith, subpoenaed to attend as a witness, shall discharge such witness from any arrest made in violation of the last section; and is such court shall have adjourned before such arrest was made, or before application for such discharge be made, any judge of such court have the same power to discharge such witness.":41
“Every officer authorized to perform the duties of supreme court commissioner, and the first judges of county courts, shall have the like authority to discharge any witness arrested contrary to the foregoing provisions.”:42
Officers authorized to grant discharge.
Arrest absojutely void.
Every arrest of a witness, made contrary to the foregoing provisions, shall be absolutely void, and shall be deemed a contempt of the court issuing the subpæna ; and every person making such arrest shall be responsible to the witness arrested for three times the amount of the damages which shall be found by the jury, and shall also be liable to an action at the suit of the party who subpænaed such witness, for the loss, hindrance, and damages sustained by him, in consequence of such arrest."43
“But no sheriff, or other officer or person, shall be so liable, emption to unless the person claiming such exemption from arrest shall,
if required by such sheriff or officer, make an affidavit, stating :
“1. That he has been legally subpænaed as a witness to attend before some court or officer, specifying such court or officer, the place of attendance, and the cause in which he shall have been subpoenaed; and,
Persons claiming ex
40 R. St. P. 3. Ch.7. T. 3. s.51. Vol. 2. p. 402.
41 Ib. 52.
43 Ib. s. 53. 43 Ib. s. 54.